Mandate (mandatum)

A contract of mandatum (from Latin manum dare, to entrust something) was concluded when one party (the mandatary) agreed to perform a service at the request of the other party (the mandator).

A mandatum was based on friendship and, therefore, was most like the con­tract of partnership. To act as one’s procurator in litigation and to act as an adstipulator were, among other things, friendly services that contributed to the development of the contract of mandate. Relations with liberal professions, such as architects, land surveyors, and lawyers, also fell within the ambit of this con­tract. According to Roman social standards, work for money was undignified and objectionable because the services of an honorable Roman citizen could not be estimated fairly; they were priceless. Where remuneration was fixed, the con­tract was locatio conductio, not a mandate. In later classical law, however, the gratuitous character of the mandate started fading in importance, especially when an honorarium could be sought by the mandatary by extraordinary cognition.

A mandatum was consensual. A simple unilateral request or mere good advice was not enough to conclude a mandatum. Moreover, a validly estab­lished mandate was dissolved if revoked before the mandate was acted on (Gaius 3.159). A mandatum had to concern the mandator: a mandate in the exclusive interest of the mandatarius (or a third party) was superfluous and treated as advice; e.g., the mandate to invest your money in the purchase of land rather than lend it out at interest (Gaius, D. 17.1.2.6).

A mandatum was not about agency. The mandatary did not act as the mandator’s representative, and the mandatary’s dealings with third parties did not create rights and liabilities for the mandator. For instance, if for any reason Titius asked Caius to lend money to Sempronius (mandatum pecuniae credendae), Caius had the condictio against Sempronius and the actio mandati contraria against Titius for expenses and damages, but Titius had no action against Sempronius.

The mandatary had to execute the service and to hand over all benefits deriving from his performance. He was not allowed to exceed the purpose and terms of the mandate (fines mandati). He was liable for fraud (dolus), like the depositary, and in later law for ordinary negligence (culpa). The mandator had an action on mandate (actio mandati) against the mandatary for restitution of whatever he received on account of or in the performance of his service. The mandatary could sue the mandator only with the actio mandati contraria for reimbursement of expenses and compensation for damages. Because the actio mandati contraria was only contingent, the mandatum is considered to be imperfectly bilateral.

Mandatum ended with the death of either party, by revocation by the mandator, or by renunciation of the mandatary.